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date: 19 November 2018

Abstract and Keywords

This chapter considers the nature of intellectual property (IP) rights. It addresses some misunderstandings about legal rights, including that they are necessarily absolute, and rejects the view of IP as a regulatory tool rather than property. It then enumerates the key attributes and limits of IP using Hohfeld’s taxonomy of legal relations, and shows that, while none of these limits is enough to disqualify IP from being property, altogether they impose significant restrictions on its scope. Attention then turns to the problems of injunctions and constitutional takings of IP rights. The chapter concludes with observations about why, when properly framed, “rights talk” about IP does not inexorably point to absolutist views. The emphasis throughout is on two consistent thoughts: IP rights are real rights; but they are limited rights. They dominate some interests, but not all, and they are subject to restrictions and limitations that third parties also sometimes hold as rights.

Keywords: Intellectual property, intellectual property rights, rights, Hohfeld, property, property theory, injunctions, constitutional takings

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